Evaluation of civil pre-trial procedures

Question 1

2 strengths of pleadings

Answer 1

Provide information

Worthwhile

Question 2

Provide information - pleadings

Answer 2

Each pre-trial procedure is intended to provide the court with information about the case. The court will receive a copy of each of the documents filed in the pleadings stage, giving it a record of the claims and the defences.

Question 3

Worthwhile - pleadings

Answer 3

They allow the parties to determine whether it is worthwhile proceeding with the case. At the pleadings stage, it may be so obvious to the plaintiff that there is a clear defence, that the plaintiff may decide not to proceed. Similarly, the defendant may find that the case is so strong that it is not worthwhile defending the case.

Question 4

2 weaknesses of pleadings

Answer 4

Confusing

lengthy

Question 5

Confusing - pleadings

Answer 5

Pleadings can be complex and particularly difficult to understand for unrepresented litigants.

Question 6

Lengthy - pleadings

Answer 6

Pleadings often take a long time to complete, which adds to the delay in reaching a resolution. There are several documents that need to be exchanged in the pleadings stage, and it can take
some time for pleadings to conclude.

Question 7

2 strengths of directions hearings

Answer 7

Timely

Communication

Question 8

Communication - directions hearings

Answer 8

For both parties, it is an opportunity to communicate with the judge who may ultimately hear the matter, or the court generally, about issues such as non-compliance by one party with pre-trial procedures, or difficulties with extracting information from the other party.

Question 9

Timely - directions hearings

Answer 9

Directions hearings can ensure the timely resolution of a dispute by setting down a timetable for steps to be undertaken, giving directions to the parties and generally ensuring the parties are
completing pre-trial procedures in a timely and efficient manner.

Question 10

2 Weaknesses of directions hearings

Answer 10

Confusing

Waste of time

Question 11

Confusing - directions hearings

Answer 11

Directions hearings can be difficult to understand, particularly for a self-represented party. Legal steps such as the making of orders, directions being given and applications to be made by a
party may be very confusing without the presence of a lawyer.

Question 12

Waste of time - directions hearings

Answer 12

Directions hearings may be a waste of time if the court has ordered the parties to attend the directions hearing but there are no issues to discuss.

Question 13

2 Strengths of discovery

Answer 13

Understanding

Avoids ambush

Question 14

Understanding - discovery

Answer 14

Discovery assists the parties in understanding the strengths and weaknesses of their case
and the other party’s case. One party may discover documents that support their case, whereas
the other party might discover documents that are adverse to their case.

Question 15

Ambush - discovery

Answer 15

It avoids trial by ambush, or trial by surprise, by ensuring that both parties have had access to the same relevant documents. The parties are then able to use these documents and the
information they found during discovery as the basis for the evidence they intend to lead at trial.

Question 16

2 weaknesses of discovery

Answer 16

Lengthy

Complex

Question 17

Lengthy - discovery

Answer 17

It may take a significant amount of time to complete. Particularly in cases where there are a large number of documents, discovery could take several months, resulting in a delay of the trial.

Question 18

Complex - discovery

Answer 18

The rules relating to discovery are confusing and complex. There are rules about what is relevant and what is not, which documents are privileged, and there can even be rules about
confidential or sensitive documents.